PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PABLO MONTEMAYOR, ACCUSED-APPELLANT.
QUIJANO-PADILLA, J.:
This is an Appeal[1] from the Decision[2] dated July 9, 2004 of the Regional Trial Court, Sixth (6th) Judicial Region, Branch 61, of Kabankalan City, Negros Occidental in Criminal Case No. 2003-3231 for Frustrated Homicide.
The Facts
In an information[3] dated April 9, 2003, accused-appellant Pablo Montemayor was charged with the crime of Frustrated Homicide allegedly committed as follows:
“That on or about the 13th day of February, 2003, in the Municipality of Ilog, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, who is still at large, with the use of a revolver of unknown caliber and with intent to kill, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot one MAGDALINO GUDACA y ADOLFO, thereby inflicting injuries upon the body of the latter which would have caused his death; thus, the accused had performed all the acts of execution which would have produced the crime of homicide as a consequence but, nevertheless, did not produce it by reason of some causes independent of the will of the accused, that is, the timely and able medical assistance rendered to said Magdalino Gudaca y Adolfo which prevented his death.
CONTRARY TO LAW.”
During accused-appellant’s arraignment[4] on September 2, 2003, he pleaded not guilty of the crime charged. Thereafter, trial on the merits followed.
The Version of the Prosecution[5]
On February 13, 2003 at around 8:00 o’clock in the evening, the private complainant Magdalino Gudaca y Adolfo and his wife Dolores Gudaca were in their house at Purok Rosal, Brgy. Vista Alegre, Ilog, Negros Occidental, when their in-law by the name of Josephine Libo-on informed them that there were six (6) persons taking railroad trunks on the farm which the private complainant was tenanting. The said farm was owned by Dr. Galo Gentugaya, where the trunk line of Central Sonedco passes.
Together with his wife, the private complainant proceeded to the farm. Upon arrival, they saw Pablo Montemayor alias “Pabby”, Nelson Lacson, Edwin Sucgang, Joevel Taclubos, a certain “Estoy” Montemayor and a certain “Ambing” Montemayor taking railroad trunks from the existing railroad in the farm. Private complainant told them not to take all the railroad trunks because the same were already entrusted to him by the owner Central Sonedco. However, the group never heeded him and even answered back that they have to take all the railroad trunks because they needed them. At this juncture, private complainant replied that he will see them before the barangay captain. Upon hearing this, accused-appellant Pablo Montemayor stood up, drew his .38 caliber revolver and shot the private complainant twice, hitting him first on the chest and then at the right-back portion.
Private complainant’s wife Dolores Gudaca rushed to the private complainant’s side and brought him to their house for treatment and thereafter to Kabankalan District Hospital where he was given first aid treatment. After which, he was brought to Bacolod City specifically at the Doctor’s Hospital where he had a surgical operation.
The evidence for the prosecution consist of the testimonies of Dolores Gudaca, Magdalino Gudaca and the following exhibits: Exhibit “A”[6] – Affidavit of Dolores Gudaca and its sub-marking, Exhibit “B”[7] – Affidavit of Magdalino Gudaca and its sub-marking, Exhibit “C”[8] – Medical Certificate issued by Dr. Humberto Javellana of the Doctor’s Hospital, Bacolod City, Exhibit “D”[9] – List of Medicine Expenses and Doctor’s Fee and its sub-markings and Exhibit “E”[10] – Official Receipts and its sub-markings.
The Version of the Accused-Appellant[11]
In his defense, accused-appellant Pablo Montemayor denied the accusation against him. He claims that in the evening of February 13, 2003, a certain Nelson Lacson contracted him to load railroad trunks for a fee of P250.00 per railroad trunk.[12]
Upon arrival at the farm where the railroad trunk was located, accused-appellant saw Nelson Lacson already having an altercation with the private complainant.[13] There were also other persons present who were also taking railroad trunks from the farm.
The private complainant told Nelson Lacson to stop taking the railroad trunks but the latter demanded papers from the victim. Seemingly irked by such reply, the private complainant took out his bolo and hacked Nelson Lacson.[14] Thereafter, Nelson Lacson shot the private complainant using a .357 revolver, hitting him at the left side.
After witnessing such scenario, the accused-appellant ran towards his house and brought his carabao with him. He did not inform anyone about what happened as he was threatened by Nelson Lacson.[15]
The evidence for the defense consist of the testimonies of Pablo Montemayor and his wife Gloria Montemayor.
Moreover, the accused-appellant Pablo Montemayor put up a property bond for his temporary liberty during the trial at the lower court and during the pendency of this appeal.
The Ruling of the Regional Trial Court
In a Decision[16] dated July 9, 2004, the Regional Trial Court, Sixth (6th) Judicial Region, Branch 61, of Kabankalan City, Negros Occidental found the accused-appellant guilty beyond reasonable doubt of the crime charged which is frustrated homicide. The decretal portion of the decision was stated in this wise:
“WHEREFORE, the Court finds accused Pablo Montemayor guilty beyond reasonable [sic] of the crime of frustrated homicide as charged and there being no mitigating and aggravating circumstance to consider and applying the Indeterminate Sentence Law hereby sentences him to a penalty of imprisonment of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, to pay the victim Magdalino Gudaca actual damages in the amount of P95,667.79, loss of income in the amount of P4,000.00, moral damages in the amount of P20,000.00 and to pay the cost.
It is ordered that the accused be immediately remitted to the National Penitentiary.
SO ORDERED.”[17]
Aggrieved with the decision, the accused-appellant Pablo Montemayor interposed this appeal raising the sole issue, to wit:
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT NOT ON THE BASIS OF THE STRENGTH OF THE PROSECUTION’S EVIDENCE BUT RATHER ON THE WEAKNESS OF THE DEFENSE’ EVIDENCE.
The conviction of the accused-appellant is sustained, but for the lesser offense of attempted homicide.
Accused-appellant Pablo Montemayor’s argument is mainly anchored upon his postulation that the prosecution’s evidence failed to establish his guilt beyond reasonable doubt.
Such argument is unconvincing.
At the onset (i)t is a fundamental rule that findings of the trial court which are factual in nature and which involve the credibility of witnesses are accorded with respect, when no glaring errors, gross misapprehension of facts, and speculative, arbitrary, and unsupported conclusions can be gathered from such findings.[18] The reason for this is that the trial court is in a better position to decide the credibility of witnesses having heard their testimonies and observed their deportment and manner of testifying during the trial.[19]
In the case at bench, accused-appellant was charged with the crime of frustrated homicide. However, to arrive at a just and equitable finding, We deemed it best to discuss homicide in relation to frustated homicide and attempted homicide.
Accordingly, (t)o successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable doubt: (1) that a person was killed; (2) that the accused killed that person without any justifying circumstance; (3) that the accused had the intention to kill, which is presumed; and (4) that the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. Moreover, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim without medical intervention or attendance.[20]
On the other hand, (t)he elements of frustrated homicide are: (1) the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code, as amended, is present.[21]
In cases of frustrated homicide, the main element is the accused’s intent to take his victim’s life. The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent. And the intent to kill is often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim.[22]
In the present case, We agree with the trial court that there was intent to kill on the part of the accused-appellant. This was indubitably manifested through the deadly weapon used by him to assault the victim. In retrospect, accused-appellant used a gun and shot the private complainant twice which hit the latter, once at the chest area and another at his right-back area.
Likewise, We also find the third element in attendance. Clearly, there was no qualifying circumstance that would elevate the crime to murder as provided for by Article 248 of the Revised Penal Code. However, with regard to the second element, Our view differs.
Although, the private complainant was able to submit a Medical Certificate[23] issued by Dr. Humberto Javallana, the private complainant’s attending physician, We find such certificate inadequate to meet the required quantum of evidence as contemplated by law and jurisprudence.
It bears stressing that the Medical Certificate alone would not suffice considering that it only enumerated the physician’s diagnosis and the operations conducted upon the victim. It did not aptly state or show the gravity of such wounds and whether they were mortal enough to cause the private complainant’s death if no timely medical intervention was undertaken.
In addition, the prosecution also failed to present the attending physician in court. His testimony could have been vital as he would be the best person to explain and expound on the findings stated in the Medical Certificate which could have supported or strengthened the charge for frustrated homicide.
In totality, there was evident paucity of evidence to sufficiently establish the nature or degree of the wounds sustained by the victim. Hence, We cannot sustain the charge of frustrated homicide against the accused-appellant. This Court’s ratiocination finds support in the case of Serrano v. People.[24] Portions pertinent to this discussion, to wit:
On the other hand, the CA ruled that the crime committed only reached the attempted stage as there was lack of evidence that the stab wound inflicted was fatal to cause the victim’s death.[25] The CA observed that the attending physician did not testify in court.[26] The CA also considered that the Medical Certificate and the Discharge Summary issued by the East Avenue Medical Center fell short of “specifying the nature or gravity of the wound.”[27]
Article 6 of the Revised Penal Code, as amended defines the stages of a felony in the following manner:
ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. [Emphasis and italics supplied.]
In Palaganas v. People,[28] we made the following distinctions between frustrated and attempted felony as follows:
1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or accident other than the offender’s own spontaneous desistance.[29]
The crucial point to consider is the nature of the wound inflicted which must be supported by independent proof showing that the wound inflicted was sufficient to cause the victim’s death without timely medical intervention.
x x x x x x x x x x x x
The danger to life of any wound is dependent upon a number of factors: the extent of the injury, the form of the wound, the region of the body affected, the blood vessels, nerves, or organs involved, the entrance of disease-producing bacteria or other organisms into the wound, the age and constitution of the person injured, and the opportunities for administering proper surgical treatment.
When nothing in the evidence shows that the wound would be fatal without medical intervention, the character of the wound enters the realm of doubt; under this situation, the doubt created by the lack of evidence should be resolved in favor of the petitioner. Thus, the crime committed should be attempted, not frustrated, homicide.[30]
Under these standards, we agree with the CA’s conclusion. From all accounts, although the stab wound could have been fatal since the victim testified that he saw his intestines showed, no exact evidence exists to prove the gravity of the wound; hence, we cannot consider the stab wound as sufficient to cause death. As correctly observed by the CA, the victim’s attending physician did not testify on the gravity of the wound inflicted on the victim. We consider, too, the CA’s observation that the medical certifications issued by the East Avenue Medical Center merely stated the location of the wound.[31] There was also no proof that without timely medical intervention, the victim would have died.[32] This paucity of proof must necessarily favor the petitioner. (emphasis supplied)
Nevertheless, other than lowering the crime charged to attempted homicide, We find no reason to deviate from the sound ruling of the trial court, specifically in its finding that the private complainant and his wife were able to positively and categorically identify the accused-appellant as the victim’s assailant. To illustrate this, excerpts of the private complainant’s testimony are reproduced as follows:
Moreover, (t)he victim’s credibility is further strengthened by his lack of improper motive to falsely accuse the (accused-appellant) of the crime. Human experience tells us that it is unnatural for a victim to accuse someone other than his actual attacker; in the normal course of things, the victim would have the earnest desire to bring the guilty person to justice, and no other.[35]
In a vain attempt to escape culpability, accused-appellant insisted that it was not him who shot the private complainant, but a certain Nelson Lacson. He posited that he never reported or divulged such circumstance to anyone as he was afraid of the threats made towards him by the said Lacson.
Apparently, accused-appellant is trying to put up the defense of denial, which this Court looks upon with disfavor. Aside from mere allegations, no concrete proof was presented by the accused-appellant to buttress such claim. In fact, when pressed during his cross-examination, accused-appellant was not able to sufficiently justify his failure to inform the authorities about his version of the incident, even considering that what was at stake was his reputation and liberty. Thus, We find it peculiar and illogical for a man who asserts innocence to suppress what he claims to be the truth and suffer the consequences of an act which he vehemently denies committing.
Furthermore, jurisprudence is also replete with pronouncements that (a) mere denial, like alibi, is inherently a weak defense and constitutes self-serving negative evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters.[36]
Having settled these principal issues, We now deal with the civil liability and penalty to be imposed. As to the civil liability, We find it proper to reduce the amount of moral damages from P20,000.00 to P10,000.00 in accordance with settled jurisprudence.[37] We find it also necessary to delete the award for loss of income as there was no sufficient evidence to prove the same. However, we impose on all the monetary awards for damages interest at the legal rate of six percent ( 6%) per annum from date of finality of the decision until fully paid.[38]
With regard to the penalty for the crime of attempted homicide, We take guidance in the ruling of Serrano v. People,[39] thus:
Article 51 of the Revised Penal Code, as amended, provides that the imposable penalty for an attempted crime shall be lower by two degrees than that prescribed by law for the consummated felony.
Under Article 249, the crime of homicide is punished by reclusion temporal. Applying Article 61 (Rules of graduating penalties) and Article 71 (Graduated scales), two (2) degrees lower of reclusion temporal is prision correccional which has a duration of six (6) months and one (1) day to six (6) years.
Under the Indeterminate Sentence Law, the maximum term of the indeterminate sentence shall be taken, in view of the attending circumstances that could be properly imposed under the rules of the Revised Penal Code, and the minimum term shall be within the range of the penalty next lower to that prescribed by the Revised Penal Code.[40] Thus, the maximum term of the indeterminate sentence shall be taken within the range of prision correccional, depending on the modifying circumstances. In turn, the minimum term of the indeterminate penalty to be imposed shall be taken from the penalty one degree lower of prision correccional, that is arresto mayor with a duration of one (1) month and one (1) day to six (6) months.
In the absence of any modifying circumstance, the maximum term of the indeterminate penalty shall be taken from the medium period of prision correccional or two (2) years and four (4) months and one (1) day to four (4) years and two (2) months.[41] The minimum term shall be taken within the range of arresto mayor. Hence, the penalty imposed by the CA against the petitioner of six (6) months of arresto mayor, as minimum term of the indeterminate penalty, to four (4) years and two (2) months of prision correccional, as maximum term of the indeterminate penalty, is correct.
WHEREFORE, in view of the foregoing, the appeal is DENIED. The Decision dated July 9, 2004 of the Regional Trial Court, Sixth (6th) Judicial Region, Branch 61 of Kabankalan City, Negros Occidental in Criminal Case No. 2003-3231 is hereby AFFIRMED with MODIFICATIONS:
1. Accused-appellant Pablo Montemayor is found guilty beyond reasonable doubt of the crime of Attempted Homicide and sentenced to suffer the indeterminate penalty of imprisonment of SIX (6) MONTHS of arresto mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as maximum;
2. The award for moral damages is reduced to P10,000.00;
2. The award for loss of income in the amount of P4,000.00 is deleted and;
3. Accused-appellant is ordered to pay interest at the rate of six percent (6%) per annum on the actual and moral damages from the finality of this decision until fully paid.
The appealed Decision is AFFIRMED in all other respects.
SO ORDERED.
Hernando and Azcarraga-Jacob, JJ., concur.
[1] Rollo, pp. 33-47.
[2] Rollo, pp. 42-46; Records, pp. 79-84.
[3] Records, p. 1.
[4] See Certificate of Arraignment, records, p. 25.
[5] See the version of the prosecution as narrated by the lower court, RTC Decision, rollo, pp. 42-43; Records, pp. 79-80; Brief for the Accused-Appellant, Statement of Facts, rollo, p. 37; Brief for the Appellee, Counterstatement of Facts, rollo, pp. 64-66; TSN dated January 27, 2004, pp. 2-12.
[6] Records, p. 5.
[7] Records, p. 6.
[8] Records, p. 4.
[9] Records, pp. 36-37.
[10] Records, pp. 38-50.
[11] See the version of the defense as narrated by the lower court, RTC Decision, rollo, pp. 43-44; Records, pp. 80-81; Brief for the Accused-Appellant, rollo, pp. 37-38; TSN dated March 3, 2004, pp. 1-23.
[12] See TSN dated March 3, 2004, pp. 6-7.
[13] See TSN dated March 3, 2004, p. 6.
[14] See TSN dated March 3, 2004, p. 4.
[15] See TSN dated March 3, 2004, pp. 12-13.
[16] Rollo, pp. 42-46; Records, pp. 79-84.
[17] Rollo, p. 46; Records, p. 84.
[18] People v. de Leon, G.R. No. 186471, January 25, 2010, citing People v. Macatingag, G.R. No. 181037, January 19, 2009; People v. Bayani, G.R. No. 179150, June 17, 2008, 554 SCRA 741.
[19] Id.
[20] Abella v. People, G.R. No. 198400, October 7, 2013, citing People v. Badriago, G.R. No. 183566, May 8, 2009, 587 SCRA 820, 832, citing SPO1 Nerpio v. People, 555 Phil. 87, 94 (2007); People v. Tolentino, G.R. No. 176385, February 26, 2008, 546 SCRA 671, 695.
[21] Serrano v. People, G.R. No. 175023, July 5, 2010, citing Mahawan v. People, G.R. No. 176609, December 18, 2008, 574 SCRA 737, 758.
[22] Abella v. People, G.R. No. 198400, October 7, 2013, citing Colinares v. People, G.R. No. 182748, December 13, 2011, 662 SCRA 266, 275-276, citing People v. Pagador, 409 Phil. 338, 351 (2001); Rivera v. People, 515 Phil. 824, 832 (2006).
[23] See Certification, records, p. 4.
[24] G.R. No. 175023, July 5, 2010.
[25] Serrano v. People, G.R. No. 175023, July 5, 2010. (citations omitted)
[26] Serrano v. People, G.R. No. 175023, July 5, 2010. (citations omitted)
[27] Serrano v. People, G.R. No. 175023, July 5, 2010. (citations omitted)
[28] Serrano v. People, G.R. No. 175023, July 5, 2010, citing G.R. No. 165483, September 12, 2006, 501 SCRA 533.
[29] Serrano v. People, G.R. No. 175023, July 5, 2010, citing G.R. No. 165483, September 12, 2006, 501 SCRA 535.
[30] Serrano v. People, G.R. No. 175023, July 5, 2010, citing Epifanio v. People, G.R. No. 157057, June 26, 2007, 525 SCRA, 563-564; also see Paddayuman v. People, G.R. No. 120344, January 23, 2002, 374 SCRA 278, 288.
[31] Serrano v. People, G.R. No. 175023, July 5, 2010. (citations omitted)
[32] Serrano v. People, G.R. No. 175023, July 5, 2010, citing Ingles v. CA, G.R. No. 117161, March 3, 1997, 269 SCRA 122, 130.
[33] TSN dated January 27, 2004, pp. 3-5.
[34] TSN dated January 27, 2004, pp. 6-8.
[35] Serrano v. People, G.R. No. 175023, July 5, 2010.
[36] People v. Nelmida, G.R. No. 184500, September 11, 2012, citing People v. Arofo, 430 Phil. 475, 484-485 (2002).
[37] See Serrano v. People, G.R. No. 175023, July 5, 2010.
[38] Guevarra v. People, G.R. No. 170462, February 5, 2014.
[39] G.R. No. 175023, July 5, 2010.
[40] Serrano v. People, G.R. No. 175023, July 5, 2010, citing Section 1.
[41] Serrano v. People, G.R. No. 175023, July 5, 2010, applying Article 64 of the Revised Penal Code, as amended.